IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 1132 of 2012 With CRIMINAL APPEAL NO. 1134 of 2012 With CRIMINAL APPEAL NO. 367 of 2013 FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI and HONOURABLE MR.JUSTICE R.P.DHOLARIA ================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
================================================================ STATE OF GUJARAT Appellant(s) Versus GOVINDBHAI @ VICKY BABABHAI PARMAR Opponent(s)/Respondent(s) ================================================================ Appearance:
Cr.A.No.1132 of 2012 MS HANSA PUNANI, APP for the State RULE SERVED for the Opponent(s)/Respondent(s) No. 1 Cr.A.No.1134/12 and Cr.A.No.367/13.
MS HANSA PUNANI, APP for the State Ms.Sadhna Sagar, advocate for the accused.
================================================================ CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 21/10/2013 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. These appeals arise out of the judgment rendered by the learned Additional Sessions Judge, City Civil Court, Ahmedabad in Sessions Case No.271 of 2011 whereby the learned Judge convicted accused No.1, Bharat Kanjibhai Parmar and awarded sentence of 7 years under section 376 of the Indian Penal Code whereas accused No.2, Govind @ Vicky Bababhai Parmar has been acquitted of all the charges levelled against him. Criminal Appeal No.1132 of 2012 has been preferred by the State against the judgment of acquittal recorded by the learned Sessions Judge insofar as accused No.2 is concerned while Criminal Appeal No.1134 of 2012 for enhancement of sentence of original accused No.1. Criminal Appeal No.367 of 2013 is preferred by the original accused No.1 against the judgment of conviction and sentence recorded by the learned Additional Sessions Judge.
2. Accused No.1 was charged with the offence of abducting R @ A (hereinafter referred to as the ‘victim’) aged about 12 years from the lawful guardianship of her widowed mother Tejiben on 18.5.2010 at about 11 O’clock from her residence at Sant Rohidas Nagar Chawl, Behrampura, whereas accused No.2 aided in commission of abduction of the victim knowing that accused No.1 would commit sexual intercourse by abducting the victim. Both the accused were charged with the offences punishable under section 363 and 366 read with section 114 of the Indian Penal Code. Accused No.1 was also charged with offence punishable under section 376 of the Indian Penal Code since he, after abducting the victim, took her to different places for about 6 months and committed sexual intercourse several times.
3. In order to prove the aforesaid charge, the prosecution had examined several witnesses.
4. Tejiben Ishwarbhai Makwana, PW5, the mother of the victim and the complainant was examined at Ex.18. She deposed that she was residing in Sant Rohidas NagarniChali, Behrampura along with her children since her husband died due to TB. She was serving in the Municipal Corporation. She was in all having 5 children. The victim girl is the third daughter of the complainant. The victim studied upto 4th standard and thereafter was attending sewing classes. On 18th May 2010, the incident occurred while she was away from her residence for work. On that day, she found her daughter missing. After some search, she came to know that her cousin Bharat was also missing. Thereafter, she visited her near relatives in search of her daughter and ultimately she approached Kagdapith Police Station and lodged the complaint. At the time of lodging the complaint, she also submitted the birth certificate of the victim girl. Ultimately, the victim was traced out after about five months. She identified accused No.1 Bharat before the Court as well as the clothes worn by the victim.
In the crossexamination, she admitted that she got married for about 25 years before. She also admitted that she gave birth to five children one after another leaving about one year gap in each case. She denied the suggestion of the defence that she had two different daughters named Ranjan and Asha.
5. Dr.Harshadkumar Kantilal Rathod, PW 7 was examined vide Ex.23. He was the doctor who examined the victim and accused No.1. He deposed that on 2.12.2010, victim was brought before him for physical examination by the police. Before examination, history was recorded. At the time of recording history, the victim was conscious and she herself narrated that she was residing at Sant Rohidas NagarniChali, Behrampura. The upper portion of their house was rented to one Lalabhai where accused No.1 Bharat used to frequently visit. She knew him for about 2 years and she was having love affairs with him. On 18.5.2010, at about 11 O’ clock, on her own volition, they had gone to Gita Mandir bus stand from where they moved to Mehsana. At Mehsana, they stayed in a guest house. Thereafter, they went to Palanpur where they stayed for about a month at Ambaji. At that time, accused No.1 had sexual intercourse with her several times. Thereafter, they came to Ahmedabad where they stayed for about a month in a flat at Janta Nagar. There also, he used to have sexual relationship. Thereafter, they came to Kalol from where they were arrested by the police.
In her physical examination, the doctor found her hymen was torn on 2, 4, 8 and 10 O’ clock position and two fingers were easily allowed for examination. She was also sent for radiological examination for determination of her age wherein her age was estimated in between 14 to 17 years.
Accused No.1, Bharat Kanjibhai was also examined by the said doctor on the same day, i.e. 2.12.2010. Before his examination, history was also taken from him. He had also narrated similar history as narrated by the victim.
6. PW8, the victim girl was examined vide Ex.30. She deposed that her mother was working in the Municipal Corporation. She studied upto 4th standard. They were residing in a twostoreyed house. The upper portion was given on rent to one Mukeshbhai. On 18th May 2010, accused Bharat called on her mobile and asked her to come near Maldi Mata Mandir where she was told that her mother was waiting for her. When she asked about the identity of the person calling, she was told that Bharat, son of Kanjibhai was on the mobile. She thereafter had gone to Maldi Mata Mandir where she could not find her mother. There Bharat (accused No.1) along with accused No.2 Vicky was waiting. They had instructed her to sit in a rickshaw. After some time, they gave her cold drink after which she became unconscious. When she regained her consciousness at about 10 O’ clock night, she was in a room where she was told that she is in Mehsana. In the room, Bharat had sexual intercourse with her against her wish. Thereafter, she tried to contact her mother, but her mobile was in a broken condition and it was without simcard. She was threatened by accused No.1 Bharat by telling that he would kill his only brother. Thereafter, she was taken to Palanpur and from Palanpur to Ambaji. They stayed for about a month at Ambaji and on every day, the accused was having sexual relation against her wish. Thereafter, the accused had taken her to Janta Nagar, Ahmedabad where they stayed in a flat for about a month. There also he used to commit sexual intercourse against her wish every day. Thereafter, she was taken to Kalol where they stayed for about five months. There also, he used to commit sexual intercourse every day against her wish. When they were at Kalol, police came and took them to Kagdapith Police Station.
In her crossexamination, nothing worth has come out.
7. Arjunsinh Rupsinhbhai Parmar, PW11, PI of Kagdapith Police Station was examined vide Ex.43. He had investigated the case, recorded the statements of various witnesses, arrested both the accused, collected relevant evidence and after completion of the investigation, when he was waiting for the FSL report, he was transferred. Thereafter, PI, Bhimjibhai Bhanjibhai Bhagora has filed the chargesheet.
8. The prosecution has also brought on record the medical case papers regarding examination of victim at Ex.24 wherein aforesaid history as well as result of her physical examination were narrated. Similarly, birth certificate of the victim was produced at Ex.42 disclosing her date of birth as 21.10.1997, as recorded in the Birth and Death register maintained by the Ahmedabad Municipal Corporation. In order to prove the birth certificate, the prosecution had also examined one Iqbalbhai Yusufbhai Kazi, PW10, vide Ex.40. He was the officer of the Ahmedabad Municipal Corporation, who used to maintain the birth and death register. He deposed that at entry No.1476, birth date of the victim was entered as 21.10.97 wherein name of mother of the victim was mentioned as Tejiben and name of father of the victim was entered as Ishwarbhai Mevabhai. Abstract of the register also came to be produced in support of the birth certificate.
9. FSL report was produced at Ex.36 along with serological report Ex.37 which also establish presence of semen of group ‘O’ on the saree, pettycoat, vaginal swab and vaginal smear, etc. which is the blood and semen group of accused No.1.
10. The aforesaid is, in nutshell, the evidence on record.
11. We have heard learned counsel Ms.Sadhna Sagar for the appellantaccused No.1 and learned Additional Public Prosecutor Ms.Hansa Punani for the State.
12. Learned advocate Ms.Sagar has mainly argued that the birth certificate which came to be admitted in evidence is not a reliable piece of evidence as two names of the victim are mentioned and these may be the names of two different daughters. As against that, learned APP Ms.Punani has submitted that from the oral as well as documentary evidence produced by the prosecution, the age of the victim is proved without iota of doubt.
13. The contention raised by the learned advocate for the appellantaccused cannot be accepted for the simple reason that her mother, Tejiben, while giving the complaint itself narrated the name of her daughter R @ A. It may also be noted that date of birth of the victim came to be entered within three days of birth from the hospital on the record of the birth and death register maintained by the Municipality. Therefore, there is no doubt in our mind about the age of the victim.
14. Indisputably, the prosecution has proved the age of the victim to be 12 years and 6 months as her date of birth is 21.10.97 and the incident had occurred on 18.5.2010. Consequently, therefore, the age of the victim is established to be below 16 years at the time of the incident. The depositions given by her and the history given before the doctor, both are consistent and her oral evidence gets corroboration from the medical evidence. The medical evidence also suggested that her hymen was torn. The accused and the victim resided together for about six months at different places and had sexual relation several times. Considering her age of below 16 years, consent of the victim even though revealing from the history given by her before the doctor as well through her evidence is wholly irrelevant.
15. As stated above, her oral evidence gets corroboration from the medical evidence as well as the other evidence on record. From the evidence on record, sexual intercourse by accused No.1 with the victim several times during the course of stay is established beyond doubt. In view of the provisions contained in section 375 read with section 376 of the Indian Penal Code, therefore, offence of rape is established. Consequently, we have no hesitation in confirming the conviction of accused No.1 Bharat Kanjibhai recorded by the learned Additional Sessions Judge.
16. Sofaras accused No.2, Govind @ Vicky Bababhai Parmar is concerned, there appears no iota of evidence against him, except his presence at the place while kidnapping the victim by accused No.1. Neither any evidence of his aiding nor abetment to the commission of crime is available. Consequently, therefore, he cannot be linked with the crime in question. In that view of the matter, the learned Additional Sessions has rightly acquitted accused No.2. As a result, Criminal Appeal No.1132 filed by the State against acquittal of accused No.2 deserves to be dismissed.
17. Now coming to the question of quantum of sentence of accused No.1, undisputedly, the victim is aged about 13 years at the time of the incident. Accused No.1 is also aged around 20 years. It further appears that they had love affairs and willingly gone to various places from where they had established sexual relationship. Considering the age of the victim as well as the accused and accused No.1 having no past criminal antecedents and he has just crossed the juvenile age at the time of the incident, sentence of 7 years inflicted by the learned Additional Sessions Judge appears to be quite justified. There appears no reason to enhance the sentence inflicted by the learned Judge.
Consequently, Criminal Appeal No.1134 of 2012 filed by the State for enhancement of sentence is also required to be dismissed.
18. In the result, Criminal Appeal Nos.1132 and 1134 of 2012 preferred by the State are dismissed. Criminal Appeal No.367 of 2013 filed by the accused is also dismissed.
Bail bond of original accused No.2 who is respondent in Criminal Appeal No.1132 of 2012 stands cancelled.
R & P be transmitted to the Trial Court.
(AKIL KURESHI, J.) (vjn) (R.P.DHOLARIA,J.)